Opinion
CV-01-6500 (SJF)(RLM)
November 24, 2003
OPINION ORDER
I. Introduction
Defendants Prudential Securities, Inc., its subsidiaries and affiliates, and Prudential Insurance Company of America, its subsidiaries and affiliates ("Defendants"), have moved for summary judgment dismissing plaintiff's complaint in its entirety. For the reasons stated below, the motion is GRANTED.
II. Background
A. Procedural History
On October 2, 2001, plaintiff Ammundi Subramanian ("Subramanian" or "plaintiff') filed a complaint against defendants alleging employment discrimination based on age, national origin, religion, and race in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"); 42 U.S.C. § 1981; the Age Discrimination in Employment Act, as amended, 29 U.S.C. § 621 et seq. ("ADEA"); and section 296 of the New York State Executive Law ("NYS Human Rights Law"). (Compl. para. 3). Although the complaint also asserts common law tort claims of intentional and negligent infliction of emotional distress, (Id. para. 45-48), plaintiff has voluntarily withdrawn these causes of action. (Mem. of Law in Opp'n to Defs.' Mot. for Summ. J. at 34). On October 21, 2003, defendants filed the instant motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, or in the alternative for dismissal with respect to plaintiff's common law claims pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. (Defs.' Not. of Mot. for Summ. J.). Defendants also seek an award of costs and attorneys' fees. (Id.).
The facts are derived from Defendants' statement of material facts pursuant to Local Rule 56.1 and the accompanying affidavits and other evidentiary material filed in support of Defendants' motion for summary judgment, as well as plaintiff's statement of disputed material facts and the accompanying evidentiary material filed in response to the motion. The facts are not in dispute except as noted.
Plaintiff is a sixty-three year old Asian/Pacific male, who practices Hindu, and was born in India. Since 1988, Plaintiff has been employed by defendant Prudential Securities Incorporated ("PSI"), a retail brokerage business. Defendants' New York City-based Licensing and Registration Department (the "NY-LRU" or the "Unit") is responsible for the insurance and securities licensing and registration needs of defendants and their affiliates. Initially, the NY-LRU performed securities licensing and registration functions for PSI. In 1997, PSI merged its insurance licensing group into the NY-LRU, which was thereafter responsible for licensing and registration issues for both PSI's securities and insurance businesses. In February 2001, the insurance licensing group of Prudential merged with PSI's NY-LRU, and the merged Unit was made part of Prudential. The NY-LRU is composed of two divisions — securities and insurance. Each division contains functional sub-units: Terminations, Amendments, Securities, Pre-Hire, Outbrokerage, Appointments, Confirmations, Renewals and Insurance Licensing.
Plaintiff currently works in the Terminations sub-unit of the LRU, and although defendants claim that plaintiff's principal duties for most of his tenure have been to perform "commission reinstatements," plaintiff contends that his primary role has also included confirmations, communications, terminations, amendments, and U-4, U-5, and R-8 filings.
An authorized PSI representative who effectuates a securities transaction typically receives a commission. When a commission is not properly credited to a representative, or when commissions are erroneously paid to PSI representatives who should not receive them, plaintiff investigates and arranges a credit or a debit to, respectively, the representative's account.
Plaintiff's complaint alleges that several promotions within the NY-LRU were discriminatory. He also alleges that prior to the merger, it was not company policy to post promotional opportunities before positions were filled, and that this was discriminatory. Although after the 2001 merger job openings were posted on the company's internal website, plaintiff further alleges that the fact that employees were not trained how to search for positions was discriminatory.
Plaintiff also claims that his current salary is not indicative of his tenure, experience, and education, and that his average salary increase was not as large as other employees. Plaintiff contends that other employees collected bonuses between 1988 and 2000 ranging from $300 to $8,000. Plaintiff has not received any bonuses.
Although plaintiff contends that other employees were permitted to leave work at 2:00pm on the day before Thanksgiving in 1996 and 1997, and Memorial Day weekend in 2000, and he was asked to remain in the office until 5:00pm, he concedes he has not experienced the same problem since that time.
From 1995 until February 1998, Claude Wade, an African-American male, was responsible for managing the NY-LRU. In February 1998, Kelly Cavanaugh, then forty-one years old, assumed the role of managing the NY-LRU. She continues in that position today.
In 1995, Michelle Talafha was hired from outside of PSI as Supervisor of Securities. At the time of her appointment, Ms. Talafha, who is Caucasian and was born in the United States, was approximately thirty-seven years old. Ms. Talafha was promoted again in 1997 to Manager of Securities.
In late 1997, Joan Motisi replaced Ms. Talafha as Supervisor of Securities position. Ms. Motisi is Caucasian, was born in the United States, and was forty-one years old at the time of the appointment.
In late 1998 or early 1999, PSI created the position of Supervisor of Insurance, which was filled by Charles Topp. Mr. Topp is Caucasian, was born in the United States, and was twenty-four years old at the time of his appointment. In 1999, Ms. Cavanaugh transferred Ms. Talafha back to Manager of Securities, and promoted Mr. Topp to Manager of Insurance. In 2001, Mr. Topp was promoted to Business Unit Liason. John Waring was hired as Manager of Insurance.
In 1999, Dana Vitiello, who is Caucasian, was born in the United States, and was thirty-two years old, was promoted to Supervisor of Insurance.
Also in 1999, Angela Hurley, who is African-American, was born in Barbados, and was forty-four years old, was promoted to Supervisor of Amendments and Terminations.
In 2000, Ms. Cavanaugh created a Supervisor of Pre-Hire position. John Lee, who is Asian, was born in Korea, and was twenty-nine years old, was promoted to the position.
In 2001, the position of Manager of Administration and Communications was created. Ms. Cavanaugh awarded the post to Kathleen Ryan, who is Caucasian, was born in the United States, and was twenty-eight years old.
In 2001, Scott Lopez, an Hispanic, was promoted to Supervisor of Renewals and Confirmations.
Following the merger, also in 2001, the position of Manager of Pre-Hire and Outbrokerage was created. Curtis Flippen, an African-American born in the United States, was hired from another division of Prudential to fill the position.
Defendants claim that the promotions were based upon expertise in the relevant functional areas and leadership potential. Defendants concede that plaintiff was never informed of or interviewed for the vacancies despite repeatedly expressing his interest in promotion to several supervisors and managers.
III. Analysis
A. Statutes of Limitations
To commence a claim for unlawful discrimination under Title VII or the ADEA, a plaintiff must file administration charges with the Equal Employment Opportunity Commission ("EEOC") within either 180 or 300 days of the alleged discriminatory practice, depending upon the state in which the alleged discriminatory conduct occurred. See 42 U.S.C. § 2000e-5(e)(1) (1994) (Title VII); 29 U.S.C. § 626(d) (1994) (ADEA);see also Griffith v. Gallagher, No. 01-7926, 2002 U.S. App. LEXIS 10248, at *2 (2d Cir. Apr. 25, 2002); Flaherty v. Metromail Corp., 235 F.3d 133, 136 n. 1 (2d Cir. 2000). Generally, a claim must be filed within 180 days of the alleged discriminatory act. However, if the act occurs in a state which has laws prohibiting the type of discrimination of which a plaintiff complains and an agency to enforce such laws, then the claimant must file with the EEOC within 300 days. See 42 U.S.C. § 2000e-5; see also Dezaio v. Port Auth. of New York and New Jersey, 205 F.3d 62, 64 (2d Cir. 2000); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998) (noting that a claimant must file a discrimination charge with the EEOC within 180 of the alleged unlawful employment action or, if the claimant has already filed the charge with a state or local equal employment agency, within 300 of the alleged act of discrimination). Since the alleged discriminatory acts occurred in New York, which has anti-discrimination laws and an enforcement agency, plaintiff had 300 days to file his discrimination charges.
For claims brought under 42 U.S.C. § 1981 and the N.Y.S. Human Rights Law, the statute of limitations in New York is three years from the date the claim accrues. See N.Y.C.P.L.R. §§ 214(2), 214(5);King v. American Airlines, Inc., 284 F.3d 352, 356 (2d Cir. 2002) (three year statute of limitations for a § 1981 claim brought in New York); Wanamaker v. Columbia Rope Co., 108 F.3d 462, 464 (2d Cir. 1997) (three year statute of limitations for N.Y.S. Human Rights Law actions). Plaintiff filed a complaint with the New York State Division of Human Rights on September 26, 2000.
Subramanian filed a charge with the EEOC on July 3, 2001. Thus, any claims brought under Title VII or the ADEA that accrued before September 6, 2000, more than 300 days prior to the EEOC filing, are time-barred. Moreover, since Subramanian filed the instant action on October 2, 2001, any § 1981 or N.Y.S. Human Rights Law claims that accrued prior to October 2, 1998 are barred by the three year statute of limitations.
Plaintiff contends that the aforementioned limitations periods are inapplicable in this case pursuant to the "continuing violation" doctrine. According to the doctrine, a plaintiff who files a complaint about a continuing policy of discrimination extends the limitations period for all acts committed under the policy complained of if even one discriminatory act occurred within the limitations period. See Hudson v. W.N.Y. BICS Div., No. 02-9270, 2003 U.S. App. LEXIS 18778, at *5-6 (2d Cir. Sept. 9, 2003); Schapiro v. N.Y. City Dep't of Health, No. 01-7146, 2001 U.S. App. LEXIS 27394, at *5-6 (2d Cir. Dec. 28, 2001).
As stated in Nat'l Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 153 L.Ed.2d 106, 122 S.Ct. 2061 (2002), "The statute precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period," but "consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as any act contributing to that hostile environment takes place within the statutory time period."Id. at 105.
"[D]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable `unlawful employment practice.'" Id. at 114 (emphasis added). Even if related to the acts alleged in timely filed charges, they are not actionable if time barred because "Each discrete discriminatory act starts a new clock for filing charges alleging that act." Id. at 113.
Each of the acts which plaintiff alleges to be discriminatory is a separate and discrete occurrence not subject to the continuing violation doctrine. Hence, those claims under Title VII arising from incidents that took place before September 6, 2000 are time-barred.
The distinction between discrete acts and a hostile work environment set forth in Morgan also applies to ADEA, § 1981, and N.Y.S. Human Rights Law claims. See Staff v. Pall Corp., 233 F. Supp.2d 516, 527-528 (S.D.N.Y. 2000). Since the continuing violation doctrine is inapplicable, plaintiff's ADEA claims arising before September 6, 2000 are time-barred, as are his § 1981 and N.Y.S. Human Rights claims occurring before October 2, 1998.
Based upon the foregoing, the following claims are time-barred under all four statutes: the 1995 promotion of Claude Wade to Director of NY-LRU; the 1995 promotion of Michelle Talafha to Supervisor of Securities; the December 1997 promotion of Michelle Talafha to Manager of Securities; the December 1997 promotion of Joan Motisi to Supervisor of Securities; and the February 1998 promotion of Kelly Cavanaugh to Vice-President of Licensing and Registration. The April 1999 promotion of Charles Topp to Manager of Insurance; the April 1999 promotion of Dana Vitiello to Supervisor of Insurance Licensing; and the November 1999 promotion of Angela Hurley to Supervisor of Amendments and Terminations are time-barred under Title VII and the ADEA, but timely under § 1981 and the N.Y.S. Human Rights Law. The only allegations of discrimination that are timely under all four statutes relate to the 2000 promotion of John Lee to Supervisor of Pre-Hire; the 2001 promotion of Kathleen Ryan to Manager of Administration and Communication; the 2001 promotion of Scott Lopez to Supervisor of Renewals and Confirmation; the 2001 selection of John Waring as Manager of Insurance; and the 2001 selection of Curtis Flippen as Manager of Pre-Hire and Outbrokerage.
Although Mr. Lee's promotion may have taken place before September 6, 2000, neither party has specified the month in which it occurred. Therefore, the Court will view the facts in a light most favorable to the plaintiff, and assume that Mr. Lee was hired after September 6, 2000, making all of plaintiff's claims in relation to this promotion timely.
B. Summary Judgment Standard
Summary judgment should not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is material "if it might affect the outcome of the suit under the governing law." Hoitz v. Rockefeller Co., 258 F.3d 62, 69 (2d Cir. 2001). An issue of fact is genuine only if a jury could reasonably find in favor of the nonmoving party based on that fact. See id. The moving party bears the initial burden of establishing the absence of any genuine issue of material fact, after which the burden shifts to the nonmoving party to establish the existence of a factual question that must be resolved at trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L.Ed.2d 202, 106 S. Ct 2505 (1986). The trial court is required to construe the evidence in the light most favorable to the nonmoving party, and draw all reasonable inferences in its favor. See id. at 252; Cifarelli v. Vill, of Babylon, 93 F.3d 47, 51 (2d Cir. 1996).
The Second Circuit has recognized that direct evidence of discriminatory intent is rare, and often must be inferred from circumstantial evidence found in the pleadings. See Holtz, 258 F.3d at 69. Thus, granting summary judgment motions in such cases should be done with an extra measure of caution, although if a discrimination case is void of genuine issues of material fact, summary judgment may be appropriate. See id (citing McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997)); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) ("It is now beyond cavil that summary judgment may be appropriate even in the fact — intensive context of discrimination cases.").
C. Burden-Shifting Analysis Under Title VII, the ADEA, 42 U.S.C. § 1981, and NYSHRL
Title VII makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a) (1994). The ADEA prohibits discrimination toward employees at least forty years old. 29 U.S.C. § 623, 631(a) (1994). According to § 1981, "all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts." 42 U.S.C. § 1981 (1994). Under section 296 of the N.Y.S. Human Rights Law, it is unlawful for an employer, "because of the age, race, creed, color, [or] national origin, . . . to discriminate against such individual in compensation or in terms, conditions or privileges of employment." N.Y. EXEC. LAW § 296(1)(a) (2001).
Since plaintiff has not offered any direct evidence of promotional discrimination, his Title VII, ADEA, § 1981, and N.Y.S. Human Rights Law claims must be examined under the three-step burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817 (1973). See Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir. 1994) (applying McDonnell Douglas standard to ADEA claims); Mudholkar v. Univ. of Rochester, No. 00-7412, 2000 U.S. App. LEXIS 25208, at *3-4 (2000) (finding that the method of analysis applied to Title VII cases also applies to § 1981 claims); Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001) (noting that N.Y.S. Human Rights Law discrimination claims are evaluated using the same analytical framework as Title VII actions).
First, plaintiff must prove a prima facie case of discrimination.See McDonnell Douglas, 411 U.S. at 802-804: see also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L.Ed.2d 207, 101 S.Ct. 1089(1981). Second, once plaintiff has established a prima facie case, the burden shifts to the defendant, who must demonstrate "a legitimate, nondiscriminatory reason" justifying the alleged improper employment action. McDonnell Douglas, 411 U.S. at 802; see also Farias, 259 F.3d at 98. Third, if the defendant provides such evidence, the plaintiff must demonstrate that the defendant's reasons are pretextual. See Burdine, 450 U.S. at 253.
IV. Plaintiff's Claims
A. Failure to Promote
To establish a prima facie case of discriminatory failure to promote, a plaintiff must show: (1) he is a member of the protected class; (2) he applied to a position for which he was qualified; (3) he was denied the position; and (4) the circumstances of the adverse employment decision give rise to an inference of discrimination. See Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003); Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 2000).
1. Plaintiff's Prima Facie Case
"In determining whether plaintiff has met the de minimis initial burden of showing circumstances giving rise to an inference of discrimination, the function of the court on a summary judgment motion is to determine whether the proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive. It is not the province of the summary judgment court itself to decide what inferences should be drawn." Cronin v. Aetna Life. Ins. Co., 46 F.3d 196, 204 (2d Cir. 1995).
a. Member of a Protected Class
It is undisputed that plaintiff is a member of the protected class since he is sixty-three years old, an Asian Pacific, a practicing Hindu, and was born in India.
b. Promotion Application and Qualification
To establish a prima facie case for failure to promote, a plaintiff generally must establish that he applied for the positions at issue.See Brown v. Coach Stores. Inc., 163 F.3d 706, 711-12 (2d Cir. 1998); Vargas v. Chubb Group of Ins. Cos., No. 99-4916, 2002 U.S. Dist. LEXIS 18438 (S.D.N.Y. Sept. 30, 2002). As the plaintiff correctly notes, this requirement does not apply where "the plaintiff indicated to the employer an interest in being promoted to a particular class of positions, but was unaware of specific available positions because the employer never posted them." Mauro v. Southern New Eng. Telecomms., Inc., 208 F.3d 384, 387 (2d Cir. 2000). Plaintiff alleges that he made repeated requests for promotion within the Licensing and Registration Department. (Subramanian Decl. para. 26). Nevertheless and despite the fact that the 2001 vacancies for Manager of Insurance and Manager of Pre-Hire and Outbrokerage positions were posted on Prudential's internal website, a fact not in dispute, plaintiff did not apply for these positions. (Subramanian Dep. 191:22-192:11; Mem. of Law in Opp'n to Defs.' Mot. for Summ. J. at 19). Since plaintiff had the same access to each posting but failed to apply, he has failed to satisfy the second prong of his prima facie case in relation to the Manager of Insurance and Manager of Pre-Hire and Outbrokerage positions filled by Messrs. Waring and Flippen, respectively.
Moreover, the plaintiff must demonstrate that he possessed the necessary qualifications for the positions in question. While the plaintiff does not need to show perfect or even average performance, see Gregory v. Daly, 243 F.3d 687, 696 (2d Cir. 2001), a "minimal showing" of the "basic skills necessary for the performance of [the] job" is required.Id. When, as here, the employer has retained the plaintiff for a substantial amount of time, it can be inferred that the plaintiff possesses at least the basic skills necessary for the performance of the job he or she is performing. See Gregory, 243 F.3d at 696. Construing the evidence in a light most favorable to the nonmoving party, which this Court must do on a summary judgment motion, the fact that plaintiff has been employed by defendant for fifteen years, communicated his desire for promotion, and has continually been denied such promotion is sufficient to sustain the conclusion that he was qualified for the positions. Thus, with respect to the promotions of Dana Vitiello, Angela Hurley, Kathleen Ryan, and Scott Lopez, plaintiff has satisfied the second prong.
However, plaintiff was asked at his deposition whether he was qualified to hold the Manager of Insurance position. His responses were "No, I don't think so." and "Frankly, I don't think so." (Subramanian Dep. 188:17-20, 191:17-21). When asked if Vice-President of Licensing and Registration is a position that he should be holding today, plaintiff responded, "No. Kelly Cavanaugh's position, no." ( Id. 169:5-12). Plaintiff has also acknowledged that he was not qualified to hold Claude Wade's position as Director of the NY-LRU. (Pl.'s Reply Statement of Disputed Material Facts para. 83). Thus, based on plaintiff's own admission that he was not qualified to assume the positions eventually filled by Mr. Topp, Mr. Waring, Ms. Cavanaugh, and Mr. Wade, the second prong of his prima facie case is not satisfied as to those promotions.
c. Denial of Promotion
It is undisputed that plaintiff was denied all of the promotions that he challenges.
d. Inference of Discriminatory Intent
An inference of discriminatory intent may be demonstrated by showing that the employer treated employees not in the protected group more favorably, see Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994); Hunter v. St. Francis Hospital, No. 02-528, 2003 U.S. Dist. LEXIS 14602, at *17 (E.D.N.Y. Aug. 20, 2003), if those allegedly treated preferably are similarly situated to the plaintiff in all material respects. See Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997). Plaintiff has not sufficiently alleged circumstances giving rise to an inference of discriminatory intent.
Plaintiff has merely alleged that he applied for several positions, for which he thinks he was qualified, and that the positions were given to other candidates. As to the defendants' practice of failing to post job vacancies prior to 2001, plaintiff concedes that this practice affected all employees, and not just those in his protected group. The official company policy as of 2001 was to post job vacancies on the company website. While plaintiff claims that this policy was also discriminatory, he concedes that it also affected all employees. Where the failure to post job opportunities affects all employees, there is no inference of discrimination sufficient to withstand a motion for summary judgment.See Minus v. West, No. 99-7229, 2003 U.S. Dist. LEXIS 9277, at *17-18 (E.D.N.Y. May 30, 2003).
Moreover, courts in this circuit have noted that diversity in a defendant's staff undercuts an inference of discriminatory intent.See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 38 (2d Cir. 1994); Lawrence v. State Univ. of New York, No. 01-7395, 2002 U.S. Dist. LEXIS 23916, at *17-18 (S.D.N.Y. Dec. 12, 2002). Six of the allegedly discriminatory promotions were given to women, five to racial minorities, three to individuals over the age of forty, and two to foreign-born individuals. Mr. Wade and Ms. Cavanaugh, who made the promotional determinations, are African-American and over the age of forty, respectively. These facts heighten plaintiff's burden. See Diaz v. N.Y. City Transit Authority, No. 99-9528, 2003 U.S. Dist. LEXIS 18084, at *20-21 (S.D.N.Y. Oct. 10, 2003).
In sum, to meet his burden of demonstrating an inference of discrimination, plaintiff relies upon conclusory allegations that the defendants discriminated against him on the basis of age, religion, race, and national origin. He fails to cite any discriminatory statements made or actions taken by defendants. Plaintiff has therefore failed to establish an inference of discrimination.
2. Defendants' Non-Discriminatory Reasons
Even if plaintiff had met his initial burden, defendants' have offered legitimate, non-discriminatory reasons for the promotions at issue. To meet their burden, defendants need only articulate the existence of a non-discriminatory reason for a promotion that, if believed by a fact-finder, would support a judgment in defendants' favor. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). "The employer need not persuade the court that it was motivated by the reason it provides; rather, it must simply articulate an explanation that, if true, would connote lawful behavior."Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998). The ultimate burden of proving intentional discrimination against the plaintiff remains at all times with the plaintiff. See id.
Defendants argue that the individuals selected for the disputed promotions were selected on the basis of their expertise in the relevant functional areas and the leadership potential that they demonstrated. As the Second Circuit has stated, "evidence that defendants filled these . . . positions with . . . applicants who were more qualified than plaintiff rebuts any presumption of discrimination." Holt v. KMI-Continental Inc., 95 F.3d 123, 130 (2d Cir. 1996); see also Kravitz v. N.Y. City Transit Auth., No. 94-5910, 2001 U.S. Dist. LEXIS 21618, at *26 (E.D.N.Y. Dec. 18, 2001), aff'd, 2002 U.S. App. LEXIS 18420 (2d Cir. Sept. 6, 2002).
Plaintiff conceded at deposition that his experience in the relevant functional areas was less than Dana Vitiello, (Subramanian Dep. 168:11-14), Angela Hurley, ( Id. 133:22-134:2, 135:6-18), John Lee, ( Id. 144:23-146:4), Kathleen Ryan, ( Id. 175:10-176:9), Michelle Talafha, ( Id. 135:6-18, 162:23-163:3), and Curtis Flippen ( Id. 146:3-5, 172:1-18). Plaintiff also concedes that his experience in insurance confirmations was obtained after Scott Lopez was promoted to Supervisor of Renewals and Confirmations. (Subramanian Dep. 151:15-25).
Defendants' explanation that other candidates had greater expertise in the relevant functional areas, and the Declarations of Kelly Cavanaugh and Claude Wade, combined with plaintiff's concessions at his deposition, satisfy the defendants' burden of presenting legitimate, non-discriminatory reasons for its actions.
3. Pretext
As the employer satisfied its burden, the presumption of discrimination is rebutted. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). At this stage, "`to defeat summary judgment . . . the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination.'" Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (quoting Stern v. Trustees of Columbia Univ. in City of New York, 131 F.3d 305, 312 (2d Cir. 1997)). For instance, the plaintiff may establish that the employer's stated ground was a pretext for discrimination "by showing that the employer's proffered explanation is unworthy of credence." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal citation omitted). "The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination." Id. at 147. However, as the Supreme Court has noted:
an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's reason, or if the plaintiff only created a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted evidence that no discrimination had occurred.Id. at 148.
Plaintiff fails to provide sufficient evidence to permit a rational finder of fact to infer that his age, race, religion, and national origin were motivating factors behind defendants' employment decisions. While he claims that he had some experience in the functional areas of the challenged positions, that he is older, has more tenure at PSI/Prudential, and has more education and licenses than those promoted, "under the law, it is the perception of the decision-maker as to the employee's qualifications and not that of plaintiff, which is relevant."Ferguson v. Barram, 2000 U.S. Dist. LEXIS 4592, at *20 (S.D.N.Y. Apr. 11, 2000). In other words, Subramanian's subjective belief that he was more qualified is insufficient to create a genuine issue of material fact as to whether he was the target of discrimination.
Defendants obviously placed emphasis on the amount of experience within the relevant functional areas and leadership potential. As the Second Circuit has held, "[w]hen a decision to . . . promote . . . one person rather than the other is reasonably attributable to an honest even though partially subjective evaluation of their qualifications, no inference of discrimination can be drawn,"Liberman v. Gant, 630 F.2d 60, 67 (2d Cir. 1980).
Of the promotions at issue, plaintiff conceded that either he was not qualified, had no experience, did not know the job responsibilities, had not worked in the field on a full-time basis in years, had no experience with one aspect of the job, obtained the relevant experience after the position was filled, or should not be holding the position. Based on the foregoing, this Court is of the opinion that no reasonable jury could find that, more likely than not, discrimination was the reason for the failure to promote the plaintiff.
B. Disparate Pay
To establish a prima facie pay discrimination claim, plaintiff must show: (1) that he is a member of a protected class; (2) that he was paid less than similarly situated non-members of his protected class; and (3) evidence of discriminatory animus. See Belfi v. Prendergast, 191 F.3d 129, 140 (2d Cir. 1999).
1. Plaintiff's Prima Facie Case
a. Member of a Protected Class
It is undisputed that plaintiff is a member of the protected class since he is Sixty-three years old, an Asian Pacific, a practicing Hindu, and was born in India.
b. Pay in Relation to Similarly Situated Non-Members of Protected Class
Merely alleging that a plaintiff was paid less than an employee whose duties were comparable to plaintiff's duties is insufficient to establish a prima facie case of pay discrimination. See Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Indeed, to be similarly situated, the individuals with whom plaintiff attempts to compare himself "must be similarly situated in all material respects." McGuinness v. Lincoln Hall, 263 F.3d 49, 53-54 (2d Cir. 2001) (citing Shumway v. United Parcel Serv., Inc., 118 R.3d 60, 64 (1997)). While their circumstances do not have to be identical, "there should be a reasonably close resemblance of facts and circumstances. What is key is that they be similar in significant respects." Lizardo v. Denny's. Inc., 270 F.3d 94, 101 (2d Cir. 2001).
Plaintiff fails to allege, much less demonstrate, that he is similarly situated with the personnel who received higher compensation. Therefore, plaintiff has failed to satisfy this prong of his prima facie case.
c. Evidence of Discriminatory Animus
Plaintiff notes "Consistently, Mr. Subramanian's annual salaries, increases of annual salary and bonuses have all been below (or non-existent) compared to others within the Licensing and Registration Unit, irrespective of the promotions at issue." (Mem. of Law in Opp'n to Defs.' Mot. for Summ. J. at 29). However, this contention is plainly contradicted by the record. It is undisputed by plaintiff that he is the second highest paid non-supervisor in the Unit. Only one employee similarly situated, an Hispanic woman over the age of forty (Elizabeth Alvarez-Berrios) who was recruited from a competitor, receives a higher salary than plaintiff. Plaintiff has neglected to offer any evidence that defendants paid him less than Ms. Alvarez-Berrios because of his age, religion, race, or national origin. Thus, he has failed to provide evidence of discriminatory animus.
C. Disparate Treatment Claims
To establish a prima facie case of disparate treatment, a plaintiff must show that: (1) he is a member of the protected class; (2) his job performance was satisfactory; (3) he suffered an adverse employment action; and (4) the adverse action occurred in circumstances giving rise to an inference of discriminatory intent. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 125 L.Ed.2d 407, 113 S.Ct. 2742 (1993).
1. Plaintiff's Prima Facie Case
a. Member of a Protected Class
It is undisputed that plaintiff is a member of the protected class since he is sixty-three years old, an Asian Pacific, a practicing Hindu, and was born in India.
b. Job Performance
From the record, it is clear that plaintiff's job performance at Prudential was satisfactory. In his Administrative/Clerical Performance Reviews covering four separate periods of time from 1993 to 1998, the plaintiff received either an "excellent" or "satisfactory" rating in each of the twelve skill categories included in the appraisal. (Walko Decl. Ex. 21-24). The defendants do not dispute the satisfactory nature of plaintiff's job performance. Plaintiff has satisfied the second element of his prima facie case.
c. Adverse Employment Action
The Second Circuit has held:
A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in working conditions in the terms and conditions of employment. To be materially adverse a change in working conditions must be more disruptive than a mere inconvenience. . . . A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.Galabaya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal citations omitted). Plaintiff alleges that he sustained an adverse employment action because he was prohibited from leaving work early the day before three holiday weekends. More specifically, he claims that every other employee in his department was permitted to leave the office by 2:00 pm, yet he was ordered to stay at work until 5:00 pm to complete any assignments that needed completion. This Court is not persuaded that remaining at work for three hours longer than other employees on three separate occasion over a period of many years constitutes an adverse employment action. At most, the denial of permission to leave work before a holiday weekend is an inconvenience which is not actionable as a materially adverse change in working conditions. Accordingly, defendants are entitled to summary judgment on plaintiff's claim of disparate treatment with respect to these acts.
V. Conclusion
Defendants' actions did not violate the employment laws. Accordingly, summary judgment is GRANTED in defendants' favor and this case is dismissed in its entirety. Defendants' request for costs and reasonable attorneys' fees, is DENIED. The Clerk of Court is directed to close this case.